CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 décembre 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY   Application No. 12370/86 by J.S. against the United Kingdom             The European Commission of Human Rights sitting in private on 9 December 1987, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 5 June 1986 by J.S. against the United Kingdom and registered on 2 September 1986 under file No. 12370/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   FACTS           The applicant is an Irish citizen born in 1953 and resident in Glasgow.   The applicant is represented by John Macaulay, a solicitor. The facts as submitted by the applicant may be summarised as follows.           On 6 August 1985, the applicant was arrested and charged with committing a breach of the peace.   He was subsequently summoned to answer the charge at Glasgow District Court, on 20 February 1986.   The applicant's solicitor entered a plea of not guilty and the trial was fixed for 25 March 1986.           On 13 March 1986, the applicant's solicitor applied for legal aid to the District Court, submitting a legal aid form and a full statement of the applicant's defence.   The application also made it clear that the applicant wished to call a witness.   The magistrate was not informed of the applicant's previous convictions.   The application was refused on 20 March 1986 as "not in the interests of justice".           After an adjournment, the trial was eventually held on 30 April 1986, the applicant's solicitor appearing on his behalf and the Procurator Fiscal Depute for the prosecution.   The Court heard two police officers as witnesses for the prosecution and a witness called for the defence.   The magistrate at the conclusion of the proceedings held the applicant to be not guilty of the charge.   The applicant has however incurred legal expenses of £306 in connection with the trial. If the applicant had been found guilty, he could have faced a maximum penalty of 60 days imprisonment.   Since he had three previous convictions, including two for breach of the peace, he would have been at risk of a custodial sentence.     COMPLAINTS           The applicant complains that he was refused legal aid despite the fact that he had a substantial defence and insufficient means.   He contends that the interests of justice required that he be given free legal assistance.   He invokes Article 6 para. 3 (c) of the Convention in this regard.           The applicant also complains that he did not have proper facilities to prepare his defence as a result of the refusal of legal aid contrary to Article 6 para. 3 (b) of the Convention and that, in refusing the application for legal aid, the magistrate must have acted on the presumption that he was guilty, contrary to Article 6 para. 2 of the Convention.           The applicant further complains of a violation of Article 6 para. 3 (d) of the Convention.   He contends that he was not able to examine his defence witness under the same conditions as the witnesses against him.   He claims that he was unable formally to cite his witness since he was ignorant of the procedure and would also have become unable to pay the Sheriff Officers and the witness for any expenses incurred in doing so.   The applicant states that it was fortunate for him that his witness who was a friend appeared nonetheless since he was under no legal obligation to do so.   The applicant also complains that crown witnesses are reimbursed their expenses and loss of wages.   THE LAW   1.       The applicant complains that he was refused legal aid for his defence although he had insufficient means and was later acquitted.           Article 6 para. 3 (c) (Art. 6-3-c) of the Convention provides that:           "Everyone charged with a criminal offence has the following         minimum rights:           ...           (c) to defend himself in person or through legal assistance         of his own choosing or, if he has not sufficient means to         pay for legal assistance, to be given it free when the         interests of justice so require".           The Commission does not consider it necessary to decide whether the applicant has fulfilled the exhaustion of domestic remedies rule laid down in Article 26 (Art. 26) of the Convention, because it finds the application anyway inadmissible for the following reasons:           The evaluation of the requirements of the interests of justice under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention lies in the first place with the domestic courts.   In this respect the Commission notes the guidelines issued to Justices of the Peace in Scotland concerning legal aid, which guidelines indicate the relevant factors to be taken into account in deciding whether it is in the interests of justice that legal aid should be granted.   They include the consideration of whether the charge is grave and, if proved, would place the accused at serious risk of loss of liberty, whether the accused is able to follow the proceedings and state his own case and whether the nature of the defence involves expert examination of a witness for the prosecution.           The applicant alleges, however, that the magistrate in his case ignored the interests of justice in refusing him legal aid on 20 March 1986.           The Commission does not find his allegation substantiated by the facts of the case.   There is no indication in the case-file that in refusing the applicant legal aid, on the grounds that it was not in the interests of justice, the magistrate did not apply the aforementioned guidelines, having regard to the information available to him in the applicant's legal aid application, or that he made his decision on arbitrary grounds.   It is of particular significance that the applicant's previous convictions were apparently not known by the magistrate when he considered the applicant's legal aid application and that the offence with which the applicant was charged was as such of a trivial nature.           In these circumstances, the Commission concludes that it has not been shown in the present case that the interests of justice, within the meaning of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, required a grant of free legal assistance to the applicant.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant complains that the refusal of legal aid by the magistrate indicates that he presumed the applicant's guilt, contrary to Article 6 para. 2 (Art. 6-2) of the Convention, which provides as follows:           "Everyone charged with a criminal offence shall be         presumed innocent until proved guilty according to law."           However, the Commission repeats that the magistrate rejected the applicant's application for legal aid on the grounds that it was not in the interests of justice and that the magistrates' guidelines indicate a number of factors be taken into account in reaching such a decision.   There is nothing in the facts of the application as it has been presented to indicate that the magistrate failed to give the matter proper consideration.   Similarly the Commission finds no evidence that the magistrate was motivated by any presumption of the applicant's guilt.   The Commission concludes, therefore, that this complaint has not been substantiated and that the case fails to disclose any appearance of a violation of Article 6 para. 2 (Art. 6-2) of the Convention.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant also complains that the refusal of legal aid deprived him of adequate facilities for the preparation of his defence and of the ability to cite witnesses formally to appear.           Article 6 para. 3 (b) and (d) (Art. 6-3-b, 6-3-d) provide that:           "Everyone charged with a criminal offence has the following         minimum rights:           ...           (b) to have adequate time and facilities for the preparation         of his defence;           ...           (d) to examine or have examined witnesses against him and to         obtain the attendance and examination of witnesses on his         behalf under the same conditions as witnesses against him."           However, in respect of Article 6 para. 3 (b) (Art. 6-3-b), the Commission finds no evidence in the present case that the applicant had inadequate facilities to prepare his defence.   This finding is borne out by his acquittal.           The Commission also notes with regard to Article 6 para. 3 (d) (Art. 6-3-d) that though the applicant was not able formally to cite his witness in the same manner as the Crown witnesses the witness nonetheless appeared.   The applicant accordingly cannot claim to be a victim of any inequality of standing which may have existed.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission          President of the Commission                  (H.C. KRÜGER)                       (C.A. NØRGAARD)